unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

1. The definition of professional misconduct, which is the more serious form of unprofessional conduct, is found in s 403(1). As the applicant has only alleged that the Practitioner's conduct amounts to unsatisfactory professional conduct it is not necessary to recite that definition.
2. Section 404 of the LP Act sets out particular conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct. None of the kinds of conduct set out in that section is of the kind which the applicant says was committed by the Practitioner. But that is not the end of the matter because s 404 expressly provides that the conduct set out in that section is not the only conduct which can be found to be unsatisfactory professional conduct or professional misconduct. That is, conduct which is not mentioned in s 404 may nevertheless amount to either unsatisfactory professional conduct or professional misconduct.
3. In its application to the Tribunal the LPCC has stated that the Practitioner's conduct was unsatisfactory professional conduct because it:
   • (a) fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence; and
   • (b) fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
4. The criteria in (a) above does not form part of the definition in s 402 of the LP Act. Why it was asserted that the Practitioner's alleged conduct fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence was not particularised in the application (by reference for example to any standard of practice set out in the Legal Profession Conduct Rules 2010 (WA)). Nor were any submissions advanced by the LPCC as to how falling short of that standard would bring the conduct within the definition of unsatisfactory professional conduct. In her opening, Senior Counsel for the LPCC referred only to the conduct coming:

...within the inclusive definition of unsatisfactory professional conduct in section 402 of the Legal Profession Act as conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonable competent practitioner.[3]

1. We have referred to the view which the former Chief Justice took of the Practitioner's conduct when he heard the application on 8 May 2018. That view does not determine these proceedings and we are entitled to take a view contrary to that of the Chief Justice because we must form our own conclusions as to the facts and the characterisation of the Practitioner's conduct as we find it to have been.
2. The transcript of the proceedings before the Chief Justice on 8 May 2018 is, however, material to which we can have regard in coming to a view about the Practitioner's intentions and beliefs at that time because he made certain statements to the Chief Justice about those matters.

1. The facts of this matter were largely agreed between the parties. Some facts which were not agreed were not in dispute.
2. We make the following findings of relevant and uncontroversial facts:
   1. The Practitioner was at all relevant times an Australian legal practitioner within the meaning of s 5 of the LP Act.
   2. The Practitioner has been in practice for approximately 45 years, having been admitted in December 1976.
   3. In around March 2018 the Practitioner was instructed to act for a client in relation to a dispute arising under a contract for the sale of a rent roll. His client was the seller. The dispute concerned the sum payable under the contract.
   4. The contract provided that disputes arising under the contract were to be resolved by an arbitrator.
   5. Specifically, clause 20.3 of the contract provided that the arbitrator was to be agreed between the parties but that:

[I]n default of agreement as to the Arbitrator within seven (7) days after nomination in writing by any party the Arbitrator shall be a person appointed by the President of the Law Society of Western Australia.

1. The contract did not expressly prescribe a period of time within which the President was required to make an appointment of an arbitrator.
2. On 19 March 2018 the Practitioner nominated a person to be the arbitrator to resolve the dispute in accordance with clause 20.3 of the contract.
3. 8. The buyer did not accept that nomination and communicated that view to the Practitioner via its solicitor.
   1. The parties, via their respective solicitors, continued to discuss the issue of how the dispute was to be resolved and who might be appointed as arbitrator until 9 April 2018.
   2. On 9 April 2018 the Practitioner wrote to the President requesting her to appoint the arbitrator as required by clause 20.3 of the contract. That was, self-evidently, significantly more than seven days after the Practitioner had nominated to the buyer his client's proposed arbitrator.
   3. That same day (9 April 2018) following receipt of a copy of the Practitioner's letter to the President, the buyer's solicitor emailed the President and copied that email to the Practitioner. In the email he informed the President that the appointment of an arbitrator was premature and requested the President defer the appointment of an arbitrator.
   4. On 12 April 2018 the Practitioner sent an email to the President, which he copied to the buyer's solicitor, in which he indicated that he disagreed with the proposal to defer the appointment of the arbitrator and asked that the President appoint an arbitrator 'at her earliest convenience'. No specific request for an acknowledgement of receipt of the email or for a response within a specified time was made by the Practitioner.
   5. Despite the Practitioner's email to the President, the parties' solicitors continued to correspond about the possibility of reaching agreement as to the appointment of an arbitrator.
   6. On 16 April 2018:

(a) the Practitioner wrote to the buyer's solicitor and informed him that unless he withdrew his email to the President requesting deferral of the appointment of an arbitrator by 5 pm that day he would the following day commence proceedings in the Supreme Court for the appointment of an arbitrator pursuant to s 11(3) of the CA Act;

(b) the buyer's solicitor responded saying that he would not withdraw his letter to the President; and

(c) the parties subsequently exchanged emails regarding the manner of service of the foreshadowed proceedings.

1. On 18 April 2018 the parties corresponded about whether they could reach agreement as to the appointment of an arbitrator but when the buyer's solicitor indicated that he would not provide the name of a person he was prepared to have appointed as the arbitrator, the Practitioner sent an email to him stating that the seller would commence proceedings in the Supreme Court in the event that the buyer did not either agree to the Practitioner's original nominee or nominate another arbitrator suitable to the Practitioner. Neither of those things were done by the buyer's solicitor.
2. On 19 April 2018 the Practitioner caused to be filed an originating summons and supporting affidavit commencing Supreme Court proceedings ARB 6 of 2018 seeking an order under s 11(3)(b) of the CA Act that the Court appoint as the arbitrator the same barrister he had previously nominated to the buyer's solicitor.
3. On 20 April 2018 the Law Society of Western Australia sent an email to the Practitioner attaching a letter from the President informing him that she had appointed an arbitrator. That arbitrator appointed by her was a different barrister to that nominated by the Practitioner.
4. On 20 April 2018 the Practitioner served the proceedings on the other party by email and attached to that email a copy of the President's letter appointing the arbitrator.
5. On 20 April 2018 the buyer's solicitor emailed the Practitioner endorsing the President's appointment of the arbitrator.
6. The Practitioner came to know of that endorsement by about 2 pm on 20 April 2018.
7. The Court listed the originating summons for a directions hearing before the then Chief Justice on 8 May 2018.
8. Prior to the directions hearing the Practitioner prepared and filed affidavits sworn by him on 1 and 2 May 2018 in support of an application that the defendant (buyer) pay the plaintiff's (seller's) cost of the proceedings on an indemnity basis.
9. At the directions hearing on 8 May 2018 an application for indemnity costs was made by the Practitioner on behalf of the plaintiff (seller) while the defendant's (buyer's) solicitor applied for an order that the plaintiff (seller) pay the defendant's (buyer's) costs of the proceedings. The Court dismissed the proceedings and the plaintiff's costs application and ordered that the plaintiff (seller) pay the defendant's (buyer's) costs fixed in the sum of $700.
10. We also accept the Practitioner's evidence that at the time he brought the proceedings he considered that the buyer and his solicitor had been trying to frustrate the timely payment to the seller of the proper amount owing under the contract by various means, including by:
    1. positing the view that the issue of how much was owed to the seller by the buyer was an issue to be resolved by accounting methodologies rather than a dispute arising under the contract;
    2. refusing to agree to the nominated arbitrator;
    3. refusing to propose an alternative arbitrator; and
    4. seeking to have the President defer the appointment of an arbitrator.
11. It is not necessary for the purposes of these proceedings to determine whether the Practitioner's view about the buyer's conduct was correct. We note though, for the purposes of rounding out the factual background, that the buyer's solicitor ultimately accepted that the dispute was a dispute about the interpretation of the terms of the contract and that the dispute was resolved in the seller's favour.

The Practitioner's evidence on crucial matters

1. We do not accept that the Practitioner was entirely honest in his evidence before us about matters crucial to the resolution of this matter. Instead, we find that the Practitioner has endeavoured to justify or explain aspects of his conduct with the benefit of hindsight and in a way which would now put the best light upon particular actions taken or statements made by him in the course of his representation of his client and his dealings with the LPCC.
2. Of importance to the resolution of this case is the issue of whether the Practitioner intended to commence proceedings under s 11(3) or s 11(4) of the CA Act. This matters because it goes to the issue of whether the Practitioner had any reasonable basis for commencing the proceedings or whether the proceedings were doomed to fail. Although the Practitioner's evidence at the hearing before us was that he intended to commence proceedings under s 11(4) of the CA Act, we are unable to accept that evidence. Our reasons for coming to that view are set out below.
3. First, the Practitioner accepted that before he commenced the Supreme Court proceedings he made no inquiries of the President about whether, despite having received the buyer's solicitor's request to defer the appointment, she intended to appoint an arbitrator or about the time in which any such appointment might be made. The Practitioner gave evidence in his witness statement, and maintained under cross­examination, that the reasons for not having done so were that:
   • (a) there was no procedure in place pursuant to which a party seeking the President to appoint an arbitrator could contact the President to make inquiries about the progress of the appointment of the arbitrator; and
   • (b) he had a 'strong conviction' that having a private communication with the President would have been improper because it would have been embroiling her in a dispute between the parties about the appointment.
4. We are unable to accept that explanation in light of the following:

(a) while no procedure was in place for following up with the President as to her progress or intentions in respect to an appointment of an arbitrator, the solicitors for each of the parties had been in contact with the President about matters related to the appointment after the initial request for appointment had been made: the buyer's solicitor, to request the deferral of appointment and the Practitioner, to urge the President to disregard that request and proceed 'at her earliest convenience';

(b) neither of those approaches to the President were 'private communications' in that each solicitor copied the other into the communications; and

(c) in cross-examination the Practitioner accepted that writing to the President and copying the communication to the other party would not amount to a private communication and agreed that adopting that course would not have been inappropriate.[4]

1. It is clear to us from those circumstances and we find that the Practitioner had not been concerned about embroiling the President in a dispute about appointment only some days earlier and had been able to contact the President on that occasion without the existence of a formal protocol and in a manner which did not amount to a private or improper communication.
2. In the result, we find that the evidence given by the Practitioner about his reasons for not making inquiries of the President was disingenuous and cannot be accepted as a truthful account of the reasons for not making inquiries of the President at the time.
3. Second, the originating summons states that the proceedings were brought under s 11(3) of the CA Act. That section provides that where the parties have not agreed on the process for the appointment of an arbitrator, and have been unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court.
4. In contradistinction, s 11(4) of the CA Act permits a party to an agreement to apply to the Court for the appointment of an arbitrator in circumstances where the parties had agreed an appointment process but that process had failed.
5. The Practitioner gave evidence that although the originating summons and his correspondence made reference to s 11(3) of the CA Act, he had, at the time of commencing the proceedings, intended to bring the proceedings under s 11(4) because he considered that the appointment process which the parties had themselves agreed, had failed. He said he came to that view because, by the time the proceedings were commenced, the President had not appointed an arbitrator and had not responded to any of the three communications about it which the parties had sent to her. He says it was reasonable in the circumstances to regard the time taken by the President to appoint an arbitrator as evidencing the failure of the agreed process.
6. We are unable to accept the Practitioner's evidence to that effect for the following reasons:
   • (a) it is not consistent with the statements made to the Chief Justice on 8 May 2018 where the Practitioner said, truthfully in our view, that he had no reason to believe either that the President would or would not appoint an arbitrator. He accepted at that time that he simply had no idea what she was going to do;
   • (b) it is not consistent with the reference to commencing proceedings under s 11(3) of the CA Act in both the communications which preceded the commencement of the action and in the originating summons itself;
   • (c) it is inconsistent with the content of the Practitioner's letter to the LPCC dated 19 October 2018 in which he stated that he gave advice to his client:

that he was entitled to seek relief under section 11(3) of the Commercial Arbitration Act 2012 in circumstances where [the Buyer's solicitor] had sought to delay the appointment of an arbitrator without any basis under the contract and had on 3 occasions contended that the dispute was in effect to be resolved by accountants...which he knew or should have known was incorrect.[5]

He did not, in that letter say that he was intending to bring the proceedings under the provision which applied when the agreed appointment process had failed (s 11(4)) even though, by the time that letter was written, he had had time to reflect upon his actions having been put on notice of the Chief Justice's views about his conduct some five months earlier;

(d) it is inconsistent with the Practitioner's statement at paragraph 13 of the Response to the Application and Statement of Issues, Facts and Contentions[6] (Response), which was prepared by the Practitioner himself, that his client was entitled to seek an order from the Court and 'was not obliged to await an appointment by the [P]resident', which suggests that both at the time the application was made to the Supreme Court and at the time the Response was prepared he did not consider that the process by which the President would appoint an arbitrator had 'failed';

(e) it is inconsistent with the statement the Practitioner made at paragraph 38 of his witness statement dated 2 September 2020[7] to the effect that he would have advised his client to await the appointment of an arbitrator if the buyer's solicitor had withdrawn the request that the President defer the appointment. Had the Practitioner truly believed the process had failed either because the President had refused to appoint or had not appointed within a reasonable time, then withdrawing the request could not have remedied that failure. In our view the statement in paragraph 38 of the Practitioner's witness statement supports a conclusion that the Practitioner did not believe the process had failed but rather that the process was being delayed or protracted by the approach taken by the buyer; and

(f) that the Practitioner had in fact intended to proceed under s 11(3) of the CA Act, where no failure of the agreed appointment process is required, is consistent with the Practitioner having made no inquiries of the President as to her intentions prior to commencing the proceedings.

Were the proceedings commenced in circumstances where they were doomed to fail?

1. The LPCC submits that in commencing proceedings under s 11(3) of the CA Act the Practitioner was endeavouring to bypass the procedure for the appointment of the arbitrator which had been agreed between the parties to the dispute, and instead to have the Court appoint the arbitrator. The LPCC submits that the proceedings were always doomed to fail because s 11(3) of the CA Act can only be engaged where the parties have not agreed the process for the appointment of an arbitrator to resolve their dispute. Where, as was the case here, the parties had agreed a process, s 11(3) had no application.
2. The LPCC submits that if we find that the Practitioner had intended to proceed under s 11(3) of the CA Act we will also find that the commencement, service, maintenance and prosecution of the Supreme Court proceedings was doomed to fail from the outset. We accept that submission as to the consequence of the finding urged upon us.
3. The Practitioner submits that he had intended to proceed under s 11(4) of the CA Act and that there was a reasonable basis for him to do so and that he had simply made a typographical error in referring to s 11(3) of the CA Act as he did in both his correspondence with the buyer's solicitor and in the originating summons. The Practitioner submits that in circumstances where seven days had passed since the request for appointment had been made and having heard nothing at all from the President as to her intentions over that time despite there having been three communications sent by the parties to the President about the request, he was entitled to conclude that the agreed appointment process had failed and therefore to commence proceedings under s 11(4) of the CA Act.
4. For the reasons we have set out above we have rejected the Practitioner's evidence about his intentions and concluded that at the time the proceedings were commenced the Practitioner intended to bypass the President and seek to have the Court appoint an arbitrator as he thought he could do pursuant to s 11(3) of the CA Act. We also find that such an action was always doomed to fail because the parties had agreed an appointment process and therefore, s 11(3) had no application.
5. It follows from that conclusion that we also find each subsequent step taken by the Practitioner in those proceedings was also doomed to fail.
6. Even if we were wrong about the Practitioner's intentions and were to accept the Practitioner's evidence that he had intended to proceed under s 11(4) of the CA Act, we do not accept that he would have had a reasonable basis for commencing the proceedings when he did so. There was no reasonable basis for the Practitioner to have concluded that the agreed appointment process had failed. Although it may be regrettable that there had been no communication from the President despite the fact that she had received three pieces of correspondence in relation to the appointment of an arbitrator, it cannot be said that taking seven days to respond to a request amounted to such delay that it was reasonable to conclude, in the absence of any inquiry as to her intentions, that the President had no intention of appointing an arbitrator. While it may be that it was not a difficult appointment to make, in the sense that the dispute was not a complex one at law and only required the appointment of a barrister with experience in general commercial law, seven days is not an unreasonable time to have taken to have attended to the request when regard is had to the President's other roles and responsibilities and the need for her, in making an appointment, to first make inquiries as to the availability of those she regarded as suitable. The seller's desire to receive the monies due to it under the contract and the delay in obtaining those monies which predated the request to the President and Practitioner's view that the buyer was improperly delaying making the payment owed to the seller does not colour the timeliness or otherwise of the President's action.
7. Having made no inquiries of the President and there having only been seven days between the making of the request of her and the commencing of the Supreme Court proceedings, we would have concluded that the practitioner had no reasonable basis for commencing proceedings when he did even if we were to have accepted that he intended to bring them under s 11(4) of the CA Act (which we do not).
8. It follows from what we have said above that the proceedings instituted by the filing of the originating summons had no prospect of success and were doomed to fail regardless of whether the Practitioner had intended to commence them under s 11(3) or s 11(4) of the CA Act.
9. Further, once the appointment of the arbitrator had been made by the President and the Practitioner had been informed that the arbitrator was agreed to by the buyer, the making of an application for indemnity costs was of itself unjustified and doomed to fail. Even if the Practitioner had been justified in bringing the application to the Supreme Court in the first instance (which we do not accept) the need to do so could not be attributed to the buyer's conduct irrespective of whether the application was intended to have been made under s 11(3) or s 11(4) of the CA Act.
10. Indemnity costs orders are made where there is some special feature of the case that justifies a departure from the usual position that the costs are awarded to the successful party on a party and party basis. In Swansdale Pty Ltd v Whitcrest Pty Ltd[8] the Court of Appeal pointed out that an order for indemnity costs will only be made in exceptional circumstances and set out a number of relevant principles. It is usually where there has been misconduct by a party that indemnity costs are ordered to be paid. For example, they may be ordered to penalise a party where they have maintained a cause of action with no real prospect of success;[9] or for some ulterior motive; or with wilful disregard for known facts or clearly established law;[10] or have made deliberately false allegations of fact.[11]
11. The proceedings were brought under s 11(3) of the CA Act. It could not have been possible to properly assert that there was some misconduct of the buyer that necessitated the making of an application which plainly could not be maintained under that section. We find that the costs application was therefore always doomed to fail in those circumstances.
12. Even if the Practitioner had intended to bring the proceedings under s 11(4) of the CA Act, the costs application was doomed to fail. Not only was there no reasonable basis upon which to have commenced the application but, even if there had been, any failure of the President to appoint within a reasonable time (although we do not say there was such a failure) could not justify the making of an indemnity costs order against the buyer. There was, in our view, no basis at all upon which the Practitioner could have reasonably formed the view that the costs of bringing the action because of a failure of the President to appoint an arbitrator was somehow attributable to misconduct by the buyer. Whatever the reasons for the conduct of the buyer and his solicitor prior to the request of the President to appoint an arbitrator, in our view the Court could never have been satisfied that there had been any misconduct on the part of the buyer in the course of the President's appointment process which was so egregious that it needed to be marked by the making of an indemnity costs order against the buyer.

Was the Practitioner's commencement, service, maintenance and prosecution of the proceedings unsatisfactory professional conduct?

1. Given we have found that the proceedings were always doomed to fail there is no need to separately consider whether the service of them after the appointment of the arbitrator and the costs application made on 8 May 2018 were separate acts of unsatisfactory professional conduct. We need only to decide whether the commencement, service, maintenance and prosecution of the proceedings as a whole amounts to unsatisfactory professional conduct.
2. A practitioner must not commence civil proceedings which lack a legal foundation. To do so squanders valuable court time and resources and results in the practitioner's own client incurring unnecessary costs and places them at risk of adverse costs orders being made against them. It also puts the opposing party to unwarranted cost and inconvenience. In New South Wales and the Australian Capital Territory the law specifically provides that the provision of legal services without a reasonable prospect of success is capable of being unsatisfactory professional conduct or professional misconduct.[12] While that is not the case in Western Australia, the institution and maintenance of legal proceedings which have no prospect of success is undoubtedly a serious matter involving, as it does, a breach of a duty of propriety to the court[13] not to commence and prosecute proceedings with no founding cause of action is capable, depending on the circumstances, of constituting either unsatisfactory professional conduct or professional misconduct.
3. The LPCC contends that the Practitioner's conduct in commencing the proceedings which had no prospect of succeeding whatsoever, is conduct which amounts to unsatisfactory professional conduct. The LPCC submits that this is so because it is conduct which:
   • (a) caused the Practitioner's client unnecessary expense (although we accept the Practitioner's evidence that after the proceedings were concluded the Practitioner wrote off or waived the costs of the application);
   • (b) put his client at risk of costs orders being made against it, as it in fact occurred (although again we accept the Practitioner's evidence that he paid those costs himself); and
   • (c) used the court's limited resources for no legitimate purpose.
4. The LPCC contends that the public, who funds the legal system, is entitled to expect that proceedings will not be commenced when there is no basis for doing so for all of those reasons and submits that we should conclude, therefore, that the Practitioner's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and hence amounts to unsatisfactory professional conduct. We accept that submission and find that the Practitioner's conduct did constitute unsatisfactory professional misconduct.
5. We have already referred to the fact that in its application to the Tribunal the LPCC also asserted that we could find the Practitioner's conduct amounted to unsatisfactory professional conduct on the grounds that it fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence.[14] Why that was so was not particularised in the application by reference, for example, to any standard of practice set out in the Legal Profession Conduct Rules 2010 (WA). No submissions were advanced by the LPCC as to how a falling short of that standard comes within the definition of unsatisfactory professional conduct. The LPCC did not rely on that conduct meeting that test in its case at hearing.
6. The Practitioner's Queens Counsel did refer to both limbs of what he said was the test applied to determine whether conduct constitutes unsatisfactory professional conduct. In his opening he submitted that:

whichever of those two tests is applied, it must be looked at in the context of the facts in this case. It may have been conduct that some practitioners would say, I wouldn't have done that without contacting the Law Society President first, if you could.[15]

And, secondly, his client was pressing him. You're talking, when one refers to the standard of conduct observed and approved by members of the legal profession with reputed problems, there's also a standard of confidence and diligence required of a legal practitioner by a member of the public, and the member of the public in this case was Mr Deek [sic][16] who wanted things done properly in the sworn affidavit in support of the application. And I'm not suggesting for a moment that Mr Metaxas acted because he was under pressure from his client, but he was certainly under the clear understanding that the client needed that matter to be resolved after six weeks prior to previously of trying to get it resolved.

And, then, there is - I said there were two things, and the second is that putting that to one side, although it's of major importance, there's also to you - is it appropriate - and Mr Metaxas has raised and I will call him to give evidence - is it appropriate in those circumstances to actually approach the President of the Law Society? Now, it used to be the case that you couldn't find out from the Supreme Court or District Court who the judge was going to be the next day if you were in trial. It has changed now, but the view that used to be taken - and Mr Metaxas has been in practice for some decades - - -

...You shouldn't be approaching someone who is going to make some form of adjudication or nomination in this case. So Mr Metaxas will tell you that it didn't even occur to him that it was appropriate to contact (indistinct) Law Society (indistinct) as to whether it was or was not appropriate to do that, or proper to do that, may differ.

It's the kind of issue on which - about which one may say, well reasonable minds may differ on that question. [17]

1. And when referring in his opening to the question of whether the costs application ought to have been made, the Practitioner's Queens Counsel said:

Now the - he failed on that application for costs, the court rejected the application, but that does not mean that that was a doomed application because his client had been driven to incurring legal costs for the purposes of seeking to have an arbitrator appointed to resolve a dispute. And that's one view that could well be taken by any competent practitioner: my client has incurred costs, wouldn't have had to incur them if it had not been for Mr Williams' client in effect obstructing the appointment of the arbitrator.[18]

1. It seems from those submissions then that the Practitioner accepts that a practitioner's conduct is capable of being characterised as unsatisfactory professional conduct if it is conduct that falls short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence.
2. It has not been necessary to consider whether the Practitioner's conduct might also constitute unsatisfactory professional conduct on that basis because we have already concluded it is unsatisfactory professional conduct on the alternative basis contended for by the LPCC.

1. Subject to hearing from the parties we would propose to make the following orders:
   1. The Tribunal finds that between about 19 April 2018 and about 8 May 2018 Arthur Metaxas engaged in unsatisfactory professional conduct within the meaning of sections 402 and 438 of the Legal Profession Act 2008 (WA) in that he commenced, served, maintained and prosecuted proceedings in the Supreme Court of Western Australia on behalf of his client without any reasonable basis to do so.
   2. The parties are to confer and by 28 June 2021 are to file an agreed minute of orders programming the matter for hearing of the issues of penalties and costs.
   3. If the parties cannot provide an agreed minute by 28 June 2021 each party is to file and serve its own minute of proposed orders programming the matter for hearing of the issues of penalties and costs.
2. Finally, we invite the parties during their conferral to consider whether the issues of costs and penalties might be able to be resolved between them such that a minute of proposed orders dealing with penalty and costs could be filed for the Tribunal's consideration. The Tribunal would be very willing to assist in that process by the referral of the matter to mediation should the parties wish to seek an order referring the matter to mediation.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and METAXAS [2021] WASAT 82 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Unsatisfactory professional conduct ­ Legal practitioner commencing, serving, maintaining and prosecuting proceedings which were always doomed to fail ­ Penalty and costs ­ Reprimand and fine imposed and order to pay costs made

Commercial Arbitration Act 2012 (WA), s 11(3)(b), s 11(4), s 11(4)(c)

Legal Profession Act 2008 (WA), s 438(1), s 438(2), s 438(2)(b), s 439, s 439(d), s 440, s 441, s 441(a)

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)

Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S)

Legal Profession Complaints Committee v Detata [2012] WASCA 214

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)

Legal Profession Complaints Committee and Forbes [2009] VR 164

Legal Profession Complaints Committee and Gregory [2017] VR 125

Legal Profession Complaints Committee and Joubert [2015] VR 148

Legal Profession Complaints Committee and Metaxas [2018] WASAT 28

Legal Profession Complaints Committee and Metaxas [2021] WASAT 82

Legal Profession Complaints Committee and Paiker [2009] VR 163

Legal Profession Complaints Committee and Wroughton [2013] WASAT 191

Legal Profession Complaints Committee and Wroughton [2013] WASAT 191 (S)

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

Metaxas v Legal Profession Complaints Committee [2020] WASCA 27

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) LGERA 87

1. On 14 June 2021, the Tribunal published its reasons for decision in Legal Profession Complaints Committee and Metaxas [2021] WASAT 82. In that decision, we found the practitioner had engaged in unsatisfactory professional conduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act). The nature of the conduct will be referred to later in these reasons.
2. Following a hearing in relation to penalty, which was held on 21 December 2021, we have determined that, for the reasons we have set out below, the appropriate penalty to be imposed is:
   1. the issuing of a public reprimand; and
   2. the imposition of a fine of $24,000.
3. The applicant sought an order that the practitioner pay its costs fixed in the sum of $13,816. The practitioner made no submissions in relation to the application for costs. For reasons we have briefly set out below, we consider it appropriate to make the order sought.
4. The practitioner has appealed our decision on liability. In his written submissions, the practitioner submitted that we should stay the commencement of any penalty we imposed pending the outcome of his appeal.[19] While the practitioner's senior counsel did not press that submission in his oral submissions, nor was it expressly abandoned. Therefore, for the sake of completeness, we have set out below our brief reasons for refusing to take that course.

1. As referred to above, our decision in relation to liability was published on 14 June 2021. The hearing on penalty took place in December 2021. The delay between hearings was the result of matters related to the practitioner. Those reasons included a period of ill health. While we are understanding as to the health issues faced by the practitioner, we wish to note that it is the Tribunal's expectation that parties who are unable to comply with its orders make an application for an extension of time even after the event rather than ignore its orders and leave it to the Tribunal to make inquiries about the reason for and consequences of non­compliance.

1. The applicant submits that the following penalty is appropriate in the practitioner's circumstances:
   1. a period of six months suspension of the practitioner's local practising certificate to take effect 30 days after the publication of our reasons for imposing the penalty; and
   2. an order publicly reprimanding the practitioner.
2. The practitioner submits that suspension is not an appropriate penalty in his particular circumstances. While the practitioner did not identify any penalty he considers would be appropriate, he submitted that the penalty should be no greater than that which was imposed in relation to his previous disciplinary matter where he was fined $24,000 and reprimanded after a finding that he had engaged in professional misconduct.[20]

1. The practitioner submits that his failing in this matter was only the failure to make a final enquiry of the President of the Law Society to ascertain whether she had determined not to appoint, or to defer the appointment of, an arbitrator. He says that had that step been taken, he would have been entitled to commence the proceedings.[21] We do not consider that submission is correct. Whether he would have been entitled to commence proceedings under s 11(4)(c) of the Commercial Arbitration Act 2012 (WA) (CA Act) would have depended on the answer given by the President to the enquiry. An absolute refusal to appoint may have been able to be characterised as a failure of the dispute resolution process that had been agreed by the parties. Had the President indicated that she intended to appoint an arbitrator but would need additional time to do so, then given the request had been made on 9 April 2018, it would not necessarily be the case that the delay in the appointment of an arbitrator would constitute a failure of the process.
2. In any event, we did not find that the practitioner's failure was merely a failure to make an additional enquiry of the President. Nor did we characterise the failure, as the practitioner does, as simply an error in judgment as to whether the agreed arbitration had failed.[22]
3. We found that the practitioner deliberately commenced proceedings under s 11(3)(b) of the CA Act, a section that is enlivened when the parties have not agreed on a process for the appointment of an arbitrator rather than under s 11(4). The unsatisfactory professional conduct was not failing to make a final enquiry of the President of the Law Society; it was commencing and then maintaining a proceeding under s 11(3)(b) of the CA Act in circumstances where there was no factual basis for doing so because the parties had, in fact, agreed to an appointment process.

1. As we said above, we found that the practitioner commenced the proceeding in the Supreme Court by the filing of an originating summons seeking relief under s 11(3)(b) of the CA Act. The document by which the proceeding was commenced, and upon which the disciplinary proceeding was based, was included in the bundle of documents filed by the applicant on 24 June 2020 and was put to the practitioner in cross­examination by counsel for the applicant at the hearing. At no stage prior to the penalty phase of this proceeding did the practitioner assert that this was not the document he filed in the Supreme Court proceeding or even suggest that it may not have been. Yet, as part of the penalty phase of this matter, the practitioner claimed that he may, in fact, have filed a different document in the Supreme Court which referred to the action being brought under s 11(4) of the CA Act and that, therefore, the disciplinary proceedings were misconceived. When that issue was raised by the practitioner, the parties agreed that we should adjourn the penalty proceeding in order to allow enquiries to be made of the Registrar of the Supreme Court to see if she could assist in determining whether the document before the Tribunal was in fact the document by which the relevant Supreme Court proceeding has been commenced. After those enquiries were made, we were informed by the parties that the penalty proceeding should continue, presumably because the practitioner was unable to satisfy the applicant that the factual underpinning of the disciplinary action was erroneous. Nevertheless, in his written submissions, the practitioner asserted that the document shown to the practitioner in cross-examination is not the document he filed with the Court.[23] He also submitted that he had intended to commence proceedings under s 11(4)(c) rather than s 11(3)(b) and that we 'will have observed that the practitioner was taken aback' when the document showing an application having been made under s 11(3)(b) was put to him in cross­examination.[24]
2. At the penalty hearing, senior counsel for the practitioner accepted that we must proceed to determine penalty on the basis of the finding that we made in relation to liability. He accepted, correctly in our view, that whether or not the relevant document was or was not that which had been filed in the Supreme Court was not a matter for this Tribunal to consider but a matter to be resolved on appeal if the assertion were to be maintained. However, we wish to record that, contrary to the practitioner's contention, we did not observe him to have been 'taken aback' when the document was put to him in cross-examination. In our observation, the practitioner made no attempt to convey, through his evidence or body language, any concern that the document upon which he was being cross-examined was not a copy of the document he had filed in the Supreme Court.

1. The LP Act sets out the various orders that the Tribunal may make consequent upon a finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct. Section 438(2) permits the Tribunal to make a report and to transmit that report to the Supreme Court (full bench) on the findings or to make any one or more of the orders specified in s 439, s 440 and s 441 of the LP Act. Among other things, s 439 of the LP Act permits the Tribunal to order that a local practising certificate be suspended for a specified period of time or to cancel it, and to make an order publicly reprimanding the practitioner or, if there are special circumstances, to make an order privately reprimanding them.
2. The principles to be applied in determining the appropriate disciplinary sanction are well established. They were set out by the Court of Appeal in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [188] - [195] (Khosa). Those principles are as follows:

(a) The purpose of a disciplinary proceeding against a legal practitioner is the protection of the public and the maintenance of the reputation and standards of the profession rather than the punishment of the practitioner.

(b) The protection of the public includes general deterrence of other practitioners who may be tempted to engage in similar conduct as well as personal deterrence.

(c) Where the conclusion is reached that the practitioner is presently unfit to practise and the choice is between suspension and striking off, the Tribunal must consider that the practitioner will again be fit to practise after the proposed suspension period comes to an end before a term of suspension can be ordered. This is because, when a period of suspension is concluded, the practitioner's name will be on the roll of practitioners and the practitioner will be able to resume practice.

(d) Suspension is a serious form of discipline which is usually imposed where a practitioner has been found to have engaged in an act of unprofessional conduct, but who, in the opinion of the Tribunal, will be a fit and proper person to practise law after the suspension period is ended. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise.

(e) Striking off is likely to be the appropriate response when the circumstances of the conduct amounting to the current unfitness to practice demonstrate that the practitioner lacks the character and trustworthiness necessary to discharge the responsibility of legal practice.

(f) A failure to appreciate the impropriety of the practitioner's conduct may support a finding that the practitioner is unfit to practise. This is because the failure to appreciate the impropriety increases the risk of a recurrence of the improper conduct.

(g) Suspension may be an appropriate means of achieving the purpose of professional discipline even where the Tribunal does not conclude that the conduct in question indicates that the practitioner is not a fit and proper person. This is because a suspension entails a greater denunciatory and deterrent effect than a reprimand and a fine.

(h) The Tribunal is to determine the appropriate penalty, including fitness to practise, at the time of the hearing rather than at the time of the conduct.

1. In summary, where an order for removal from the roll is contemplated, the ultimate question is whether the impugned conduct of the practitioner and all of the surrounding circumstances demonstrates that the practitioner is not a fit and proper person to remain a member of the legal profession. Where the conduct of the practitioner indicates that they lack the qualities of honesty and integrity, striking off is likely to be the penalty because those character deficiencies are unlikely to be remedied during a period of suspension. In contrast, suspension would generally be appropriate where:

(a) the Tribunal considers that although the practitioner has fallen below the high standards required of a practitioner, the circumstances are such that their current unfitness to practise will be overcome during a period of suspension; or

(b) although the practitioner is thought to be fit to practise, the seriousness of the practitioner's conduct is such that the appropriate outcome is a period of suspension in order to protect the public, through general deterrence, and maintain the standards of the profession.

1. The purpose of making penalty orders is to protect the public through the maintenance of proper standards within the profession. As such, the impact that a penalty may have upon a practitioner and personal hardship that may be occasioned to a practitioner by the imposition of a particular penalty are necessarily secondary considerations: Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [47] and Khosa at [66] and [213].

1. The applicant submits that, in general, a single finding of unsatisfactory professional conduct would warrant a reprimand and, subject to the nature of the conduct and any factors in mitigation, one or more of a low to mid-range fine, the imposition of relevant conditions on the practitioner's practising certificate and some remedial and/or supervisory order.[25]
2. However, the applicant submits that in this case, the suspension of the practitioner's practising certificate for a period of six months is appropriate given:[26]

1. the nature of the conduct; 2. the nature and timing of the previous finding of professional misconduct against the practitioner;

1. the practitioner's lack of insight and remorse;

1. the practitioner's length of practice experience; and 2. our finding as to the honesty of the practitioner's evidence about crucial matters.

1. Some details regarding the practitioner's professional history are set out in his written submissions.[27] They should properly have been set out in an affidavit. Following our inquiry, we were informed by the applicant that it did not take issue with any of the practitioner's professional history as set out in the submissions. Accordingly, we accept the account given in that document by the practitioner.
2. On the basis of that information, the Tribunal makes the following relevant findings in respect of the practitioner's personal and professional circumstances:
   1. The practitioner is 68 years of age.
   2. The practitioner completed a Bachelor of Laws at the University of Western Australia and was admitted to practice in December 1976.
   3. The practitioner is currently in practice with his son, who was admitted in 2012. They employ one solicitor who was admitted in 2018.
   4. The practitioner primarily practises in the area of commercial litigation.
   5. The practitioner has, on occasions throughout his career, conducted litigation for no or reduced fee in order to assist those who would not otherwise have access to justice. His submissions detail his involvement in relation to four such matters.
   6. The practitioner has made contributions to the community in various ways. His written submissions refer to his involvement as a member of the Board of Homeswest WA from 1987 to 1993, as a member of the Psychologists Registration Board from 1987 to 1994 and as the Law Society's nominee on Legal Aid WA for a period of two years and as a sponsor of the Fremantle Chamber Orchestra.

The Practitioner's prior disciplinary history

1. During his time in practice, the practitioner has had one prior disciplinary proceeding brought against him.[28] The practitioner's written submissions assert that he had been found to have engaged in unsatisfactory professional misconduct in that matter.[29] In fact, as the practitioner's senior counsel conceded at the hearing on 21 December 2021, it resulted in a finding of professional misconduct.[30]
2. In that earlier disciplinary matter, the Tribunal found that his conduct of an application for leave to appeal and the appeal to the Court of Appeal:[31]

[S]ubstantially or consistently fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner because [the practitioner] failed to take all necessary steps to ensure that there was a proper factual basis for:

(b) oral submissions made to the Court of Appeal in support of the application for leave to appeal and the appeal.

1. The factual background to that matter is set out in the judgment of Quinlan CJ and Pritchard JA in the Court of Appeal decision Metaxas v Legal Profession Complaints Committee [2020] WASCA 27.[32] We do not propose to restate those facts. While the circumstances are clearly different in this case, having regard to the facts, it is apparent that both matters involved bringing proceedings without a proper basis upon which to do so.
2. In that matter, the Court of Appeal held that the imposition of a public reprimand, a fine of $24,000 and an order requiring the practitioner undertake a specified advocacy skills workshop was an appropriate penalty for the professional misconduct. The Court of Appeal had regard to the following matters:

1. The fact that while the practitioner had, over an extended period of time, failed to recognise his obligation and to remedy the failure, the conduct related to one matter. 2. The fact that the practitioner had, at the time, an unblemished record and the conduct was a one-off.

1. The assertion that he was not a risk to the public.

1. The fact that the major aspect of the penalty was general deterrence which could be met by the combination of a fine at the higher end of the scale and the proposed advocacy course.

Should defence of the action be taken into account in determining penalty?

1. The practitioner submits that his stance at the liability hearing is to be disregarded in the determination of the appropriate penalty. The practitioner relied upon the following passage from Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [24] in support of that submission:

[I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 ­ 268 and 271 ­ 272.

1. The Tribunal's task is to impose a penalty that is commensurate with the seriousness of the impugned conduct and achieves the purpose of the disciplinary process. While a practitioner is entitled to defend the action brought against him by the applicant, we do not accept that the practitioner's defence of the action is to be entirely disregarded. Defence of an action might, depending on the particular circumstances, be demonstrative of a lack of insight or lack of remorse. Matters of that kind are undoubtedly relevant to penalty.

Relevance of cases that show other practitioners being criticised for persisting with 'hopeless cases' but not being referred to the LPCC

1. In his submissions, the practitioner referred to many cases where the presiding judicial officer had made some criticism of the conduct of the proceedings by one of the practitioners involved but which, the practitioner submitted, had not resulted in the relevant practitioner being referred by the judicial officer to the LPCC. That is, nothing had come of similar conduct engaged in by other practitioners on other occasions. The inference from those submissions seems to be that the conduct is not that uncommon and is not seen to be serious enough to warrant referral by the court on most occasions. At the hearing, the practitioner's senior counsel acknowledged that he was not making a big point from the reference to those cases.[33]
2. Three things should be said in relation to those cases. First, if it is the case that other practitioners have behaved in a similar way to that which we have found amounted to unsatisfactory professional conduct in this case, then that perhaps speaks to the need to impose a penalty that may deter others from such conduct.
3. Second, the conduct by one practitioner is not rendered less serious merely because others are not called to account for similar behaviour. The fact is that the practitioner's conduct was referred, and we have found that his conduct amounted to unsatisfactory professional conduct. The penalty to be imposed in respect of it should not be lessened because other practitioners have not been referred to the LPCC. The fact that others have not been referred does not necessarily speak to the seriousness of the conduct of this practitioner. There may be a myriad of reasons why the other practitioners were not referred to the LPCC.
4. Third, each case needs to be dealt with on its merits and the cases referred to by the practitioner in support of the submission that the conduct was not particularly serious because others had gone unsanctioned for similar conduct were unhelpful in resolving the issue of penalty to be imposed in his case

Penalties imposed for similar conduct in other cases

1. The practitioner referred us to five cases where penalties had been imposed on other practitioners who, he submitted, had been held to have engaged in similar conduct.
2. Of those cases, four involved the Tribunal making orders to which the parties had consented.[34] The fifth case was resolved following a hearing on liability and penalty.[35]
3. It is true that in the four cases where orders were agreed by the parties, the penalty was a reprimand and reasonably modest fine, however, each of those cases involved an acknowledgement by the practitioner of the nature of the conduct. In the fifth case, where the Tribunal made an order reprimanding the practitioner, it did so in circumstances where it did not have the option of suspending the practitioner's local practising certificate because the practitioner did not hold one at the time. In that case, the Tribunal said:[36]

In other circumstances, the Tribunal might conclude that a period of suspension could be an appropriate penalty for a finding of this nature. However, accepting that the Practitioner no longer holds a local practising certificate, this course of action is not open to us.

1. Accordingly, in that case, it was for the Legal Practice Board to determine, in the event that the practitioner concerned were ever to apply for a local practising certificate, conditions that it thought were needed to ensure the protection of the public and the maintenance of the reputation of the profession.
2. In our view, those cases provide little support for the practitioner's position on penalty. It is axiomatic that each case needs to be determined having regard to its unique circumstances and the public policy behind the disciplinary process.

1. The practitioner submits that the conduct is not serious. There are several reasons why it is said that that is so.
2. First, the practitioner submits that the only failing was failing to contact the President of the Law Society before making the application to the Court. We have already explained why we do not accept that characterisation of the conduct.
3. Second, the practitioner submits that it is not serious because the practitioner's conduct 'can't possibly be said to have had some kind of effect, bad effect, on the community at large and certainly not his client'.[37] We accept that the conduct did not have had a negative impact on his client. This is because we accept the practitioner's unchallenged statement that he paid the costs orders to be paid to the opposing party in the Supreme Court action and that he did not charge his client costs in relation to the application.[38] However, the obligation does not exist solely for the protection of a practitioner's client, and we reject the submission that the conduct had no impact upon the community. Bringing actions without any basis for doing so and persisting with them solely to endeavour to recover costs, wastes the valuable and scarce resources of the court and slows down access to justice to other deserving litigants. Those resources are provided by the community and squandering them does impact the community because they cannot then be deployed in other beneficial ways. Further, unnecessarily expending the community's resources in this way does have the potential to undermine the community's confidence in the legal system.
4. The actual conduct engaged in by the practitioner on this occasion (which was found to constitute unsatisfactory professional conduct) can be regarded as less serious than that for which the practitioner has previously been disciplined (which amounted to professional misconduct) when the conduct itself is compared in isolation. However, the circumstances of the conduct for which the practitioner is now to be disciplined are made more serious as a result of this being the second disciplinary finding made against the practitioner and because of the similarity of the conduct. Both of those matters suggest that the practitioner either failed to learn from his prior misconduct or was indifferent to the appropriate professional standards. Whichever of the two possibilities is the case, there is a need for a penalty that will protect the public by deterring him from behaving in a similar fashion again.
5. Additionally, while the practitioner was entitled to defend the proceedings, we find that his doing so demonstrates both a lack of insight and a lack of remorse. Those matters are relevant in disciplinary proceedings because they go to the likelihood that the conduct will be repeated.
6. We accept the applicant's submission that it is aggravating that the Tribunal's decision in the practitioner's earlier disciplinary proceeding was delivered on 26 April 2018, and the practitioner's conduct of the proceedings involved in this case occurred very shortly thereafter and included the filing of affidavits sworn on 1 and 2 May 2018 and a hearing before the then Chief Justice on 8 May 2018.[39]
7. Further, we have found that the practitioner did not give an entirely truthful account in his evidence.[40] In the usual case, such a finding could not be taken into account in determining penalty. However, where:
   1. the allegations against the practitioner have been amended to complain of their dishonesty in relation to the evidence; or
   2. the way in which the proceedings have been conducted means that the practitioner was on notice that there was a risk of a finding of dishonest evidence being made and used in determining penalty, and the practitioner has had an adequate opportunity to deal with the prospect of such a finding,

then the Tribunal may have regard to that finding of dishonesty in determining the appropriate penalty.[41]

1. In this case, we accept the applicant's submission that we can be satisfied that the second of those two criteria has been met.[42] The practitioner was cross-examined in a way that put him on notice that his evidence in relation to his reasons for not making enquiries of the President before commencing the proceedings in the Supreme Court and the subsection under which he intended to commence the proceedings might not be believed. The closing submissions also put the practitioner on notice that his evidence might be rejected.[43] We also accept that the significance of those matters to the disciplinary proceedings was such that it would have been apparent to the practitioner and his senior counsel that an adverse finding about the practitioner's evidence in relation to those matters might arise for consideration in determining the appropriate penalty.[44]
2. The practitioner has been in practice for more than 40 years. He has many years of experience in commercial litigation. As a result, he should be very well acquainted with his professional obligations and the reasons for them. Irrespective of how much pressure the practitioner may have been under to resolve the dispute for his client, and irrespective of whether he considered that the opposing legal practitioner was acting improperly in seeking to have the appointment of an arbitrator delayed, the practitioner ought to have known he could not act as he did. In our view, his long experience in commercial litigation makes that failure more serious.
3. We find that the practitioner's pro-bono activities and general community engagement mitigate the penalty to be imposed, but only to a small degree.
4. In this case, the protection of the public requires a penalty that achieves personal deterrence. This is because we have concluded that prior disciplinary action has not had that effect and also because we find that the practitioner lacks insight into his conduct and its seriousness.
5. General deterrence is also an important aspect of imposing a penalty in this case. It is important that other practitioners are deterred from acting contrary to their professional obligations in order to secure the protection of the public and the reputation of the profession.
6. We do not find, and nor was it submitted, that the practitioner's conduct demonstrates that he is permanently unfit to practise. Further, we do not conclude that the practitioner is presently unfit to practise. He has many years experience and only one other disciplinary finding. Having regard to the seriousness of the conduct involved, the circumstances in which the conduct occurred, and to factors to which we have referred above, we have come to the conclusion that the conduct on this occasion can be viewed as warranting a penalty equal to that imposed in relation to the earlier disciplinary matter. Accordingly, we find that the penalty to be imposed in this case is as follows:
   1. a public reprimand; and
   2. the payment of a fine in the sum of $24,000.

1. The applicant has sought an order that the practitioner pay its costs in the sum of $13,816 to the Legal Practice Board of Western Australia within 30 days or as otherwise agreed between the practitioner and the Board.
2. The practitioner indicated that he wished to make no submissions in relation to the issue of costs.
3. Costs are dealt with in s 87(1) and s 87(2) of the State Administrative Tribunal Act 2004 (SAT Act). Those subsections provide as follows:

(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

1. While the Tribunal is generally regarded as a no costs or costs neutral jurisdiction, the question is whether it is fair and reasonable, having regard to the particular circumstances of the case, that a party should be reimbursed for the costs incurred.[45]
2. Where a vocational regulatory body is successful in bringing proceedings for a complaint that justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of discretion to award costs in favour of the regulatory body.[46] The reason for that is that regulatory bodies perform public functions which promote the public interest, usually with limited resources. An inability to recover its costs may act as a disincentive to a regulatory body bringing disciplinary action or ensuring that, when such action is brought, the allegations are properly and thoroughly presented.[47]
3. In this case, having regard to the manner in which the proceeding was conducted and the findings made, we find that it is fair and reasonable for an order to be made that the practitioner reimburse the applicant for its costs.
4. Having regard to:

1. the manner in which the matter proceeded; 2. the length of the hearing;

1. the fact that both parties were represented by senior counsel;

1. the fact that the applicant is seeking only to recover its disbursements and is not seeking costs of its own legal officer's time;[48] 2. the fact that the applicant's senior counsel's hourly rate was considerably lower than the maximum hourly rate for senior counsel specified in Table A of the Schedule to the Legal Profession (State Administrative Tribunal) Determination 2018 and Table A of the Schedule to the Legal Profession (State Administrative Tribunal) Determination 2020;[49] 3. the fact that the practitioner, while not consenting, did not oppose the making of an order for costs or the sum sought; and 4. the applicant's schedule of disbursements and the invoices provided in support of the order sought,

we find that an order requiring the payment of costs fixed at the agreed sum is fair and reasonable.

1. The practitioner submitted in writing that the penalty we impose should be stayed pending the outcome of the appeal commenced in relation to liability.[50] That submission was not pressed by the practitioner's senior counsel but nor was it expressly abandoned. Therefore, we consider it necessary to deal with the request for a stay of our orders.
2. It is not for this Tribunal to stay its orders. In our view, we are entitled to, and should, proceed on the basis that our findings are correct. Although we have not concluded that the protection of the public and the maintenance of appropriate professional standards necessitates the suspension of the practitioner's practising certificate, in our view, it would undermine that objective to stay the penalty, particularly in circumstances where we are unaware of the ground of appeal and can make no assessment of the prospect of the practitioner succeeding on the appeal. Accordingly, any stay should be sought from the Court of Appeal.

1. Subject to hearing from the parties as to the form of the orders and the time for payment of the amounts ordered to be paid to the Legal Practice Board in order 4, we propose to make the following orders:
   1. Pursuant to s 439(d) of the Legal Profession Act 2008 (WA), the practitioner is publicly reprimanded.
   2. The practitioner is to pay a fine of $24,000 pursuant to s 438(2)(b) and s 441(a) of the Legal Profession Act 2008 (WA).
   3. The practitioner is to pay the Legal Profession Complaints Committee's costs fixed at $13,816 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).
   4. The amounts specified in orders 2 and 3 are to be paid to the Legal Practice Board within 30 days of this order unless otherwise agreed between the practitioner and the Legal Practice Board.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[2] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

[5] Letter from Metaxas to LPCC dated 19 October 2018 para 32 in Exhibit 3: LPCC Book of documents pages 203-216.

[8] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 [10].

[9] Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.

[10] J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA) (No 2) [1993] FCA 70; 46 IR 301.

[11] Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 1 at 34.

[12] Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 cl 4(1); Civil Law (Wrongs) Act 2002 (ACT) s 188(3).

[13] Legal Profession Complaints Committee and Amsden [2014] WASAT 57, [48] ­ [49].

[16] In fact his client's family name was spelt Dique.

[19] Respondent's Submissions on Penalty dated 8 December 2021, para 86.

[20] Metaxas v Legal Profession Complaints Committee [2020] WASCA 27.

[22] Respondent's Submissions on Penalty dated 8 December 2021, para 85.

[23] Respondent's Submissions on Penalty dated 8 December 2021, para 31.

[24] Respondent's Submissions on Penalty dated 8 December 2021, para 30.

[25] Applicant's Submissions on Penalty and Costs dated 19 July 2021, para 4.

[26] Applicant's Submissions on Penalty and Costs dated 19 July 2021, para 5.

[27] Respondent's Submissions on Penalty dated 8 December 2021, paras 65­83.

[28] Legal Profession Complaints Committee and Metaxas [2018] WASAT 28.

[29] Respondent's Submissions on Penalty dated 8 December 2021, para 84.

[31] See Metaxas v Legal Professional Complaints Committee [2020] WASCA 27 at [6].

[32] Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 at [8] ­ [21].

[34] Legal Profession Complaints Committee and Paiker [2009] VR 163; Legal Profession Complaints Committee and Forbes [2009] VR 164; Legal Profession Complaints Committee and Joubert [2015] VR 148; Legal Profession Complaints committee and Gregory [2017] VR 125.

[35] Legal Profession Complaints Committee and Wroughton [2013] WASAT 191; Legal Profession Complaints Committee and Wroughton [2013] WASAT 191 (S).

[36] Legal Profession Complaints Committee and Wroughton [2013] WASAT 191 (S) at [13].

[39] Applicant's Submissions on Penalty and Costs dated 19 July 2019, para 15.

[40] See Legal Profession Complaints Committee and Metaxas [2021] WASAT 82 at [22], [23] and [27].

[41] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 at [284] (Beech AJA).

[42] Applicant's Submissions on Penalty and Costs dated 19 July 2019, para 10.

[43] ts 33­39, 44­45, 64 and 66, 29 April 2021.

[44] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 at [289] (Beech AJA).

[45] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 at [50] (Murphy JA).

[46] Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30].

[47] Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30].

[48] Applicant's Submissions on Penalty and Costs dated 19 July 2021, para 25.

[49] Which provides a useful guide to the maximum rates which might be allowed as party/party costs: Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) at [126] and Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [53].

[50] Respondent's Submissions on Penalty dated 8 December 2021, para 83.